Montefiore Medical Center

National Labor Relations Board - Board Decisions

Oct 23, 2019

368 NLRB No. 100 (N.L.R.B. 2019)

368 NLRB No. 100
NOTICE: This opinion is subject to formal revision before publicationp in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Montefiore Medical Center and New York State
Nurses Association. Case 02–CA–229024
October 23 , 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On May 30, 2019, Administrative Law Judge Kenneth
W. Chu issued the attached decision. The General Coun-
sel and the Charging Party filed exceptions and supporting
briefs, the Respondent filed an answering brief, and the
General Counsel and the Charging Party filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. October 23, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan Member
______________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

1 The General Counsel and Charging Party have excepted to some of
the judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. In addition, some of the General
Counsel’s exceptions imply that the judge’s rulings, findings, and con-
clusions demonstrate bias and prejudice. On careful examination of the
judge’s decision and the entire record, we are satisfied that the General
Counsel’s contentions are without merit.
Susannah Z. Ringel, Esq., for the General Counsel.
Peter D. Conrad, Esq., for the Respondent.
Claire K. Tuck, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case was
tried in New York, New York, on March 19, 2019. The New
York Nurses Association filed the charge on October 9, 2018,1
and the General Counsel issued the complaint on December 21,
2018.
On the entire record, including my observation of the de-
meanor of the witnesses,2 and after considering the briefs filed
by the parties,3 I make the following
FINDINGS OF FACT
I. JURISDICTION AND UNION STATUS
The Respondent is a New York not-for-profit corporation with
an office and place of business at 111 E. 210th Street, Bronx,
New York (Respondent’s medical facility) and, at all material
times, admits it has been engaged in operating a hospital provid-
ing inpatient and outpatient medical care at the facility. During
the past 12 months, Respondent admits that it derives gross rev-
enues in excess of $250,000, and purchases and receives at its
Bronx medical facility goods valued in excess of $5000 directly
from points outside of the State of New York. The Respondent
admits, and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act. At
all material times, the Union, New York State Nurses Associa-
tion, is a labor organization within the meaning of Section 2(5)
of the Act (GC Exh. 1).
II. ALLEGED UNFAIR LABOR PRACTICES
Paragraph 5 of the complaint (GC Exh. 1(c)) alleges that
On or about June 25, 2018, Respondent, by Shalom Simmons,
at Respondent's facility, threatened employees with unspeci-
fied reprisals for requesting union representation for an inves-
tigatory interview with Respondent, which employees reason-
ably believed could result in disciplinary action.
The counsel for the General Counsel alleges that by such con-
duct, the Respondent has been interfering with, restraining, and
coercing employees in the exercise of rights guaranteed to the
employees by Section 7 of the Act in violation of Section 8(a)(1)
of the Act. The counsel for the Respondent argues that the Gen-
eral Counsel has failed to demonstrate that there were any threats
In affirming the judge’s credibility determinations, we do not rely on
his statements concerning the Union’s delay in filing the unfair labor
practice charge or the employees’ failure to challenge their supervisor
after she allegedly made the unlawful threat.
1 All dates are 2018 unless otherwise indicated.
2 Witnesses testifying at the hearing included Andrea Guzman, Una
Davis, Marie Kiffin, and Shalom Simmons.
3 The exhibits for the General Counsel are identified as “GC Exh.”
and Respondent’s exhibits are identified as “R. Exh.” The closing briefs
are identified as “GC Br.” for the General Counsel; “R. Br.” for the Re-
spondent; and “CP Br.” for the Charging Party. The hearing transcript is
referenced as “Tr.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
of reprisal made as alleged in the complaint.
The Patient Care Incident
Andrea Guzman (Guzman) has been a registered nurse with
the Respondent’s Bronx medical facility for the past 5 years.
Guzman is currently stationed at the surgical progressive care
unit and, on occasions, she is also assigned to perform charge
nurse duties. A charge nurse makes assignments for nurses and
ancillary staff for the day. The charge nurse is a rotating position
among the nursing staff because a permanent charge nurse has
not been appointed. Guzman receives her daily assignments from
the administrative nurse manager, Shalom Simmons (Simmons),
including any charge nurse duties. Guzman testified that Sim-
mons has been the nurse manager since early 2017. Guzman is
also a member of the Union (Tr. 13−16).
Guzman received an email from Simmons in the afternoon on
June 21inquiring as to an incident involving patient care. The
email (GC Exh. 2) stated
Hi Nurse Guzman
I was hoping to talk to you today I wanted to know what hap-
pened with 82 during the bleeding episode the family has some
clinical concerns so I was hoping to see a midas report come
through but I didn't see anything if you have not done so please
enter a midas and I am also hoping will get a chance to talk
about what happened thanks very much. Shalom
Guzman replied 10 minutes later by email and stated that she
did not know that a bleeding episode would require a midas re-
port and to have Simmons explain the reasons to complete a
midas report. Simmons replied the following morning that she
would like to have (Guzman’s) take on it (presumably the need
to file a report) and they will discuss further when Guzman re-
turns from her leave (GC Exh. 2).
Guzman testified that a patient had bled while on her shift and
that Simmons was hoping to review a report over the incident.
The report is identified as “midas report” and is completed by
the responsible nurse where there’s the possibility that harm was
done to the patient or if harm could have been prevented. Guz-
man did not complete a midas report (Tr. 17, 58).
Guzman also forward a copy of Simmons’ June 21 email to
Marlena Fontes (Fontes) (GC Exh. 3). Guzman testified that
Fontes was her union representative and delegate (Tr. 17). Guz-
man’s email stated
Hi Marlena,
I would like to talk with Shalom about what happened to my
patient but I am uncomfortable going in and talking with her
alone . I would like to implement my Wiengarten (sic) Right. I
will text you on when is a good time to meet.
thanks—Andrea Guzman
Upon my examination of Guzman as to why she needed to
email Fontes, Guzman responded that Simmons’ email stated
that the patient’s family had some clinical concerns over the
bleeding episode. Guzman said that a midas report was not re-
quired because it was expected for the patient to bleed according

4 “The family has some clinical concerns,” and she (Simmons)
wanted me to fill out a MIDAS report” (Tr. 35).
to the to the patient’s diagnosis, but she was nevertheless worried
over the family’s concerns4 (Tr. 34, 35).
Guzman said that she did not receive a reply from Fontes.
Guzman was on leave on June 22 and returned to work on June
25 (Tr. 54).
Shalom Cheri Simmons (Simmons) is and was the administra-
tive nurse manager for the Respondent’s step-down unit at all
material times of this complaint. She has held this position for
the past 3 years and is responsible for the unit on a 7 day/24-hour
basis. Simmons said Guzman was already working at the step-
down unit when Simmons was hired at the Respondent’s facility
(182−185).
Simmons said she was prompted to write the June 21 email to
Guzman because a family member of a patient under the care of
Guzman had complained that Guzman was “rough” in a medical
procedure used by Guzman on the patient. Simmons said that
she had spoken to Guzman the morning of June 21 about the in-
cident. According to Simmons, Guzman agreed to meet with
Simmons on June 21, but when she did not, Simmons then sent
her the June 21 email (Tr. 186−189; GC Exh. 2).
Simmons said in her email that she was hoping to see a midas
report over the incident. Simmons said the report is completed
when there is some adverse event or incident that happened to a
patient (Tr. 188, 189). Simmons testified that there was no con-
cern over Guzman’s technique or clinical practice with the pa-
tient, but she wanted to just “get her side of what happened” (Tr.
189). Simmons did not see any urgency for Guzman to respond
and was willing to wait until Guzman returned to work on June
25.
The Reassignment of the Charge Nurse
Guzman arrived to work on June 25 at 6:45 a.m. She said
there is a bulletin board at the nurses’ station and Guzman no-
ticed that she was assigned as the charge nurse for that morning.
Assuming that she was the charge nurse for the day, Guzman
obtained the patient report from the night charge nurse and re-
viewed the overnight activities. She took about 15−30 minutes
to review the report. As she was reviewing the report, Guzman
said that she was informed by Una Davis (Davis), another staff
nurse, that Simmons had asked Davis to be charge nurse for the
day. Guzman believed her conversation with Davis occurred be-
tween 7:15−7:30 a.m. Guzman asked Davis if she could be the
“co-charge nurse.” Davis said that would be fine with her (Tr.
20−22).
There is staff meeting or “huddle” at approximately 8 a.m.
where the nurses and staff discuss the activities for the day. Sim-
mons was present at the meeting. As Guzman was explaining
her charge nurse activities from the report (before Davis took
over the responsibilities) to the attendees at the huddle, Simmons
allegedly interrupted Guzman and informed the attendees that
although Guzman’s name was on the bulletin, the charge nurse
for the day was Una Davis. Guzman was embarrassed by Sim-
mons’ announcement and told Simmons in the future if
. . . [s]he can please email the night staff or email all the staff,
so that way I don't have to go through this embarrassment again
MONTEFIORE MEDICAL CENTER 3
of being taken off of charge nurse. And she said we’ll talk about
it later (Tr. 23).
Even though the charge nurse position is rotated on a daily
basis, Guzman testified she was embarrassed over this incident
because Simmons had never previously taken a nurse off as a
charge nurse (Tr. 23, 24). Guzman maintained that everyone was
present at the meeting when Simmons made the announcement
and she felt embarrassed. Guzman said on past occasions Sim-
mons would tell her in private when she was taken off as charge
nurse (Tr. 51, 52).
Simmons’ first contact with Guzman was on June 25 at the 8
a.m. huddle. Simmons said that she could not recall who as-
signed Guzman as the charge nurse and when the assignment
was made, but she did remember changing the charge nurse as-
signment from Guzman to Davis on June 25 (Tr. 192, 199). Sim-
mons said there is a binder with the charge nurse assignments
and denied that the name of the charge nurse for the day is placed
on a bulletin board.
Simmons explained that she reassigned the charge nurse from
Guzman to Davis because of multiple complaints she received
from the patient-care technicians about Guzman. Simmons tes-
tified that Guzman was removed as a charge nurse in March 2018
because she was having arguments with the patient-care techni-
cians, nursing attendants, and some of the nurses. Simmons spe-
cifically recalled an incident in February with a patient-care tech-
nician named Natalie Grant and a nurse attendant when Guzman
was unable to locate Grant to assist a nurse, identified as
“Lewis.” According to an investigation conducted by Simmons,
Grant was located in the employee lounge and another nurse re-
ported to Simmons that Guzman had “very strong words” with
Grant. Simmons said that Grant subsequently became very upset
because when Grant went to assist nurse Lewis, she was told by
Lewis that Grant was never needed. Simmons said that Grant
was so upset that she almost had an asthma attack and was sent
to the emergency room (Tr. 191−195).
Simmons felt best to take Guzman off the charge nurse rota-
tion for the moment and told her in March. Simmons said that
she would ensure that the nightshift was aware who would be
assigned as the charge nurse if the assignments are not done by
her (Tr. 195, 196). Simmons said that Guzman’s removal as a
charge nurse was grieved and a grievance meeting was held on
June 13. Simmons testified that even before the June 13 meeting,
she was willing to return Guzman to the rotation if Guzman
agreed to take a charge nurse class and then 3 days of orientation
with a nurse. Simmons said that Guzman took the class on May
21. Simmons said that as of June 25, Guzman had not completed
her 3-day orientation (Tr. 196−198).
Simmons testified that she waited until the huddle before in-
forming Davis to take the charge nurse assignment. Simmons
said that Guzman was present when she informed Davis. Sim-
mons denied making a general announcement about the reassign-
ment to the attendees at the huddle but believed that some nurses
may have overheard (Tr. 199–201). Simmons could not recall
Guzman’s response

5 Kiffin testified that there is no permanent charge nurse and most of
the nurses stationed at the step-down unit would rotate into that position
once or twice per week (Tr. 158, 178, 179).
I don’t recall exactly what was said, but it would be something
along the—it would—she would ask me way. She would ask
me why (Tr. 201).
Later in her testimony, Simmons recalled telling Guzman why
she was no longer in charge. Simmons explained to Guzman that
she wanted Guzman to complete her 3-day nurse orientation.
Simmons said that Guzman then asked her to send out an email
to inform the staff that she was no longer the charge nurse (Tr.
203, 204).
Una Davis (Davis) has been a registered nurse at the Respond-
ent’s Bronx facility for over 13 years and a union delegate rep-
resenting member nurses in disciplinary proceedings. Davis is
supervised by Simmons. Davis testified that she has represented
nurses as a union delegate in past meetings with Simmons re-
garding performance, patient care, time and attendance issues,
and other matters (Tr. 86−88).
Davis testified that on June 25, she was approached by Sim-
mons during the huddle and asked to take over the charge nurse
duties. Davis inquired why and was not given a reason. Davis
agreed to take the charge nurse rotation for that day. Davis then
asked Guzman if she would be willing to be her co-charge nurse
and Guzman responded in the affirmative. Davis noticed that
although Guzman was no longer the charge nurse, her name was
on the bulletin board (Tr. 101, 102). Davis did not testify if Guz-
man said anything to Simmons when she was taken off as charge
nurse during the huddle.
Marie Kiffin (Kiffin) is a registered nurse employed by the
Respondent at the Bronx facility since 2007 and is a member of
the Union. Kiffin works alongside Guzman, Davis and the other
nurses in the step-down unit (Tr. 144).
Kiffin noted that Guzman was the charged nurse on the morn-
ing of June 25 because the assignment was done during the night
shift and her name was placed on a bulletin board. Kiffin said
that she was surprised that Guzman’s name was on the charge
nurse rotation for June 25 because she knew “quite some time
ago” (“a few months ago”) that Guzman was taken off the rota-
tion by Simmons.5 Kiffin attended the nurses and staff huddle
that morning around 8 a.m. and overheard Simmons informing
Guzman that she was being taken off as the charge nurse (Tr.
149). Kiffin did not testify hearing anything else or if there was
a response from Guzman over the reassignment. Kiffin said she
attended to some other activities after the meeting and came back
to the nurses’ station “a moment or two later” and observed Sim-
mons talking to Guzman (Tr.145, 148, 165).
The Incident with Patient Care Technician Natalie Grant
Guzman testified that she was approached after the huddle by
Simmons and patient-care technician Natalie Grant (Grant).
Guzman testified that her conversation with Simmons regarding
Grant’s complaint occurred around 8:20 a.m. near the nurses’
station. Guzman said that Una Davis was standing approxi-
mately 5 feet away during this conversation.
Simmons told Guzman that she was informed by Grant that in
a conversation between Guzman and Grant that morning, Grant
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
was unable to understand what Guzman was saying to her. Sim-
mons allegedly instructed Guzman to talk in “layman’s terms”
and not use medical terms the next time she speaks to Grant over
patient care.
Guzman responded that it was a “simple conversation” and
Grant never said she was unable to understand Guzman. Guz-
man asked what Simmons meant by using only “layman’s” lan-
guage. Simmons allegedly responded that Guzman should speak
to Grant at an “8th grade” level (Tr. 24−26).
Davis had left the huddle and attended to her nursing duties.
Upon her return to the nurses’ station, she noticed that Guzman,
Grant, and Simmons were having a conversation. Davis admit-
ted that she did not hear the entire conversation and only heard
Simmons explain to Guzman how she should communicate to
Grant. Davis testified that Simmons said to use “basic terms
without using medical terminology” (Tr. 102). Upon my ques-
tioning, Davis elaborated and testified that after Guzman asked,
“what do you mean by basic language?” Simmons allegedly re-
sponded, “at eighth-grade level” (Tr. 103−105). Davis believed
it was appropriate for a supervisor to address a communication
issue between two employees (Tr. 122).
Simmons testified that Natalie Grant is a patient-care techni-
cian and is responsible for assisting the nursing staff in the care
of patients. Simmons recalled a discussion with Guzman on June
25 at around 9 or 9:15 a.m. regarding Grant. Simmons said that
Grant complained to her that Guzman instructed Grant to per-
form a medical procedure.6 Simmons said that Guzman asked
Grant to perform a procedure that Grant was not responsible to
perform (Tr. 205−208).
Grant asked Simmons to talk to Guzman about the assign-
ment. Simmons agreed to speak to Guzman. Simmons told Guz-
man that the medical procedure is something that the nurses do
and was not part of the patient-care technician’s practice. Sim-
mons denied telling Guzman how she should speak to the tech-
nicians. Simmons specifically denied telling Guzman to talk to
the technicians at an 8th grade school level or to speak to Grant
in a “simple” language. Simmons said that Guzman did not ob-
ject that it was the nurse’s responsibility to collect the urine sam-
ple (Tr. 208, 209, 235).
Guzman’s Asserts her Weingarten Rights
Guzman testified that she resumed her patient rounds after her
conversation with Simmons and returned to the nurses’ station
and met up with Davis and another nurse named Lydia Asamaoa.
Guzman said that Simmons approached all three at around 8:30
a.m. and asked that Davis, as the charge nurse, to meet her in the
office with Guzman because Simmons was going to have a meet-
ing with Guzman. Guzman said that she was not told to attend
the meeting because Simmons had directed her conversation to
Davis, but Guzman admittedly overheard the conversation. Sim-
mons then left Davis. Guzman said that Davis asked her if she
heard what Simmons had said. Guzman replied to Davis and
Asamaoa that she was not comfortable talking with Simmons
without a union delegate.
Davis said that Simmons approached her and stated that as the

6 The medical procedure was the insertion a Foley catheter in a patient
to collect a urine sample (Tr. 206, 207).
charge nurse, Simmons would like to see her and Guzman in her
office. Davis understood her involvement in the meeting would
be in her role as the charge nurse. At this point, Simmons left
the area. Davis said she turned to Guzman and asked if it was
alright that Davis went to the meeting as the charge nurse. Davis
said Guzman replied in the negative and stated to her that “No, I
would prefer to have a delegate” (Tr. 102−105). Davis denied
asking Guzman if Guzman wanted her to serve as a union dele-
gate (Tr. 118).
Simmons recalled that she spoke to Guzman on June 25 near
the nurses’ station regarding the incident with the patient and her
email about entering a midas report after the huddle. Simmons
testified
I was wondering if we can have some time today where we can
talk about what happened on Tuesday with the daughter's
claim. And I know I sent you the email about the MIDAS+ and
entering a MIDAS+.”
And she said, “I don't know why I have to do a MIDAS+. This
does not rise to the occasion of a MIDAS+."
And I said, "Okay. Well, let's—can —let's talk about it, and
you can ask Una, who's charge today, maybe she can join us
and we can, you know, talk about this, and hopefully we can,
you know, finish the case, close the case (Tr. 210, 211).
Simmons was very clear that she spoke directly to Guzman
and that the meeting was about a patient’s bleeding from a tra-
cheostomy procedure. Guzman responded and said the incident
did not rise to the level to complete a midas report but agreed to
meet with Simmons later. Simmons then returned to her office
(Tr. 211).
Nurse Marie Kiffin (Kiffin) said she was approximately six or
seven feet away from Simmons and Guzman. Kiffin admitted
that she did not hear the entire conversation but heard Simmons
say to Guzman, “I would like to talk to you with the charge
nurse” (Tr. 148, 154, 155, 168). Kiffin walked away from the
nurses’ station and when she returned minutes later, Guzman
told Kiffin that Simmons wanted to talk to her without a [union]
delegate. Guzman again expressed that she was uncomfortable
meeting with Simmons without a union delegate to nurses Davis,
Asamaoa, and Kiffin. At this point, there was some discussion
about Weingarten rights and that Guzman should use her rights.
Guzman said that Kiffin started looking at a “Union book” os-
tensibly to look up the Weingarten rights. Kiffin left the nurses’
station and return a brief time later with a copy of the Weingarten
notice issued by the Union.
Kiffin noticed that Guzman was upset and went to her locker
to obtain a copy of the Weingarten notice and made a copy for
Guzman. Kiffin testified that she did not say anything to Guz-
man before going off to obtain a copy of the notice (148, 149,
169, 170; GC Exh. 4). A copy of the Weingarten rights was
found by Kiffin and she made a copy for Guzman (Tr. 26−29;
GC Exh. 4). The Notice of Weingarten rights stated
MONTEFIORE MEDICAL CENTER 5
Davis said Guzman took the Weingarten notice and left the
nurses’ station. Davis testified she did not know where Guzman
was heading. Guzman said she proceeded to walk alone to Sim-
mons’ office with a copy of the Weingarten rights. Guzman did
not ask that Davis attend the meeting with her. Guzman knocked
on Simmons’ office and met with Simmons. However, before
Simmons said anything, Guzman gave a copy of the Weingarten
rights to Simmons. It is alleged that Simmons stated “no, no,
you don’t have to (get a union representative) upon reading the
notice.” Guzman then left the office and walked back to the
nurses’ station (Tr. 29, 30, 62). Guzman told Simmons that she
wanted her union delegate present at the meeting but did not spe-
cifically mention Fontes by name (Tr. 55, 56). It is not disputed
that the meeting between Guzman and Simmons involving the
patient bleeding incident never occurred on June 25 or at any
other time. (Tr. 60, 61).
Simmons testified that Guzman came to her office and
knocked on the door. Simmons said that the knocking continued
but no one entered so she opened the door. Simmons said that
Guzman was at the door and hand Simmons a piece of paper.
Simmons said ‘hello,’ but Guzman just handed the Weingarten
notice to her and walked away without saying anything to Sim-
mons. Simmons said she read the notice Guzman left. Simmons
then decided to seek out Guzman and ask why she was given a
copy of the Weingarten rights (Tr. 212, 213).
The Alleged Threat of Reprisal
Nurses Asamaoa, Davis, and Kiffin were present at the nurses’

7 The counsel for the General Counsel wanted to examine Davis over
a Weingarten meeting dealing with another nurse named Diesha Kellogg
station when Guzman returned from
her interaction with Simmons. Guz-
man testified that “a few minutes
later,” Simmons approached her and
the three nurses. Guzman said that
Simmons had the Weingarten notice
in her hand.
Davis testified that Guzman re-
turned “a minute” later to the station.
Davis said Simmons approached the
nurses’ station about 5 minutes later
with a copy of the Weingarten notice
in her hand (Tr. 105-107; GC Exh.
4).
Guzman testified that Simmons
stated to her, within the earshot of the
other three nurses, “I just want to
make sure and clarify that this is
what you want, that you don’t want a
representative, because I call you in,
anything you say I cannot use it
against you” (Tr. 30, 31, 72, 73).
Guzman responded that she was sure
she wanted a representative. At this
point, Simmons allegedly stated to
Guzman
. . . [o]kay, I just want to make sure, because if you
have a delegate with you, I'm going to have to pull
your file. . . it would open a can of worms (Tr. 31).
Guzman repeated that she was sure about wanting a repre-
sentative and told Simmons she was not comfortable going into
the meeting without her union delegate. Guzman said that none
of the other nurse said anything. Guzman said that all the nurses
present heard what was said and that Kiffin walked away after
Simmons made the threat. Guzman denied that Simmons said
that Davis could be present at the interview (as a union delegate)
(Tr. 73−76).
Davis testified Simmons asked Guzman “Are you sure you
want to do this?” and “I just wanted to talk to you, you do not
need a delegate.” When Guzman insisted on a delegate, Davis
said that Simmons stated to Guzman (Tr. 108, 118).
Okay. You know, if we talk to each other one-on-one, I won’t
be able to do or report it or say anything. It won’t be held
against you. But if I have to, you need a delegate, then I’m
going to have to pull your file, and that could open a whole can
of worms.
Davis said she did not say anything in response to Simmons’
comments and that no one else said anything (Tr. 122, 123). Da-
vis stated that Simmons then walked away. Davis did not testify
if Guzman said anything in response to Simmons’ comments.
Davis believed that Kiffin and Asamaoa were present at the
nurses’ station when Simmons made her remarks to Guzman (Tr.
108).7
that occurred in April 2018 to show Simmons’ animus towards the nurses
when they request union representation at investigative meetings. Upon
" NOTICE:
wgeoaRm wcans
If called into a meat
ing with management
.
you should state the
following:.
lf trite discussion could
in any way lead to
mibeing disctplined or ter
minated or affect
MY personal working pondi
tions, 1 respectfully
request that my union represen
tative be present
at INS meeting. Until my represen
tative arrives.
I chOpienot to participate in this disc
ussion.
Call your NYSNA delegate:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Kiffin testified that she walked away after giving the
Weingarten notice to Guzman but returned to the nurses’ area
about a “minute later” and observed Guzman and Simmons by
the station (Tr. 151). Kiffin said she then heard Guzman telling
Simmons (Tr. 150, 172, 173).
. . .[s]he wanted to get a delegate for was happening; she
wanted to get a delegate and Ms. Simmons said, “Are you sure
you want a delegate?” Ms. Guzman says, “Yes.” After that,
Ms. Simmons said, “Well, if you get a delegate, I'll be forced
to pull your files," and then with her hand she opened up and
said, "This could open up a can of worms.”
Kiffin said that nurses Davis and Asamaoa were present when
the comment was made by Simmons (Tr. 150, 173, 174).8 Kiffin
said that she went on her patient rounds after hearing the threat
made by Simmons. Kiffin did not said anything to Guzman or
Simmons after the comments were made. Kiffin did not testify
if Guzman said anything to Simmons in reaction to the com-
ments. Kiffin did not recall if anyone else said anything when
Simmons made her alleged threat (Tr. 150, 151, 174, 175).
On July 5, Kiffin sent an email to Guzman (R. Exh. 1). The
email stated
Subject: GUZMAN
As I approached the nurses station in step down unit June 25th
, I heard Ms. Guzman saying to Ms. Simmons that I would feel
more comfortable speaking with you with my union delegate
present. Ms Simmons asked Guzman are you sure you want
your (sic) a delegate? Guzman replied, “Yes”
Ms Simmons then responded with if you get a delegate them
(sic)
I will be forced to pull your file which could open a whole can
of worms. After hearing that I walked away (open hand gesture
was used by Ms. Simmons which indicates an abundance).
Kiffin did not receive an email response from Guzman. Guz-
man then forwarded Kiffin’s email to Fontes on that day.
Guzman testified that she did not speak to Simmons for the
rest of the day on June 25. Guzman stated that there was no in-
terview and she was never instructed to complete a midas report
over the patient care incident. It is undisputed that Guzman was
never disciplined when she did not complete the midas report
and for refusing to meet with Simmons over the patient care in-
cident (Tr. 77).
Simmons testified that she approached the nurses’ station and
met with Guzman. Simmons noticed that Davis was sitting
nearby a computer desk. Simmons asked Guzman why she had
given her a copy of the Weingarten rights. According to

objection by the Respondent, I denied this line of questioning. This al-
legation was initially raised in a charge filed by the Union and rejected
as untimely by the Region. I noted that nurse Kellogg was not involved
or a witness in the June 25 with Guzman. I also noted that this allegation
was not in the complaint and to allow it in at this time would require the
Respondent to rebut the allegation. And, if the parties were permitted to
fully litigated an allegation not in the complaint, I would have to decide
the merits of an untimely and unalleged charge. Irving Ready-Mix, Inc.,
357 NLRB 1272, 1285 fn. 13 (2011) (finding that certain unalleged but
admitted statements by a manager violated Sec. 8(a)(1) where the
Simmons, Guzman responded “I want you to know, I want a del-
egate” (Tr. 214). Simmons responded that Guzman was not in
trouble and that she did not need a delegate. Simmons said that
Guzman repeated that she wanted a delegate and Simmons re-
plied “Okay, then you can—if you want to bring your delegate,
here’s Una (Davis). Una can come in and come into the office
with us” (Tr. 214).
Simmons knew that Davis was a delegate because she was
present at the June 13 grievance meeting when Guzman was
taken off the charge nurse rotation after Simmons received the
harassment complaint from patient-care technician Grant over
the February incident. Davis confirmed that she was present
with Fontes and another manager at the June 13 meeting to dis-
cuss the February incident (Tr. 214, 215).9
Simmons said that Guzman insisted that she wanted to bring
her own delegate and Simmons responded affirmatively but told
her that she would like see Guzman sooner rather than later.
Simmons explained that she was concerned about the grievance
that the family may file about the bleeding and wanted to prepare
a complete answer with Guzman’s side of the story because Sim-
mons would be asked if she had spoken to the nurse responsible
for the patient on the day of the bleeding incident (Tr. 217, 239).
Simmons testified that Guzman never returned with a delegate
and Simmons did not pursue the matter with Guzman after June
25 because Simmons became aware that Guzman did not cause
the patient bleeding after her review of the patient’s charts and
talking to other nurses. Simmons concluded that Guzman did
not make an error with the patient (Tr. 217, 218, 237−239). Sim-
mons denied threatening Guzman or anyone else on June 25 (Tr.
219).
Discussion and Analysis
The complaint alleges that the Respondent violated Section
8(a)(1) of the Act when Simmons made a threat of unspecified
reprisal that interfered, restrained and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act.
Section 8(a)(1) of the Act provides that it is an unfair labor
practice to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7. Section 7 provides
that, “employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection . . .” A threat of unspecified
reprisal is a violation of Section 8(a)(1) of the Act. “The Board’s
well-established test for interference, restraint, and coercion un-
der Section 8(a)(1) is an objective one and depends on ‘whether
the employer engaged in conduct which, it may reasonably be
complaint alleged that other statements by the same manager violated
Sec. 8(a)(1)). For these reasons, the objection was sustained (Tr.
88−101). I would further note that a proffer was made as to what oc-
curred with Kellogg and the testimony by Davis was entered into the
transcript but not considered in my deliberations of this complaint (Tr.
140−143).
8 Nurse Lydia Asamaoa did not testify at the hearing.
9 Davis testified that she sat in a meeting involving a harassment com-
plaint against Guzman by the two patient-care technicians but denied that
she was Guzman’s union delegate (Tr. 115).
MONTEFIORE MEDICAL CENTER 7
said, tends to interfere with the free exercise of employee rights
under the Act.’” ITT Federal Services Corp., 335 NLRB 998,
1002 (2001) (quoting American Freightways Co., 124 NLRB
146, 147 (1959)). Applying this test, the Board has held that an
employer violates Section 8(a)(1) by threatening employees with
unspecified reprisals for engaging in discussions protected under
the Act. See, e.g., Alaska Ship & Drydock, 340 NLRB 874, 878
(2003). Employees asserting and discussing their Weingarten
rights or demanding a representative before an investigatory in-
terview is a protected activity.
To be sure, this complaint does not involve the deprivation of
an employee’s Weingarten rights.10 I have no doubt that the
Guzman’s meeting with Simmons was an investigatory inter-
view. Simmons testified that she wanted to find out what hap-
pened with the patient’s bleeding episode. Simmons needed to
determine whether there was any error on the part of Guzman’s
procedure with the patient. An employee would have a reason-
able belief that this interview may result in potential disciplinary
action if an error was found. However, the meeting never oc-
curred; Simmons did not repeatedly instruct Guzman to attend
an investigatory interview without a union representative after
receiving Guzman’s Weingarten notice; and Guzman was never
disciplined for any medical infractions. These facts are not in
dispute.
Credibility Determinations
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’ de-
meanor, the weight of the respective evidence, established or ad-
mitted facts, inherent probabilities, and reasonable inferences
that may be drawn from the record as a whole. Double D Con-
struction Group, 339 NLRB 303, 305 (2003); Daikichi Sushi,
335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed.Appx. 516
(D.C. Cir. 2003). Credibility findings need not be all-or-nothing
propositions—indeed, nothing is more common in all kinds of
judicial decisions than to believe some, but not all, of a witness’
testimony. Daikichi Sushi, 335 NLRB at 622. Such is the case
here.
In my opinion, I find that Simmons did not make a threat of
reprisal to Guzman or other employees on June 25 for invoking
their Weingarten rights in violation of the Act. The counsel for
the General Counsel proffered as background information the
events of June 25 leading to the alleged threat to demonstrate
Simmons’ proclivity to interfere and coerce the exercise of em-
ployee rights. However, I find otherwise.
With regard to the reassignment of the charge nurse duties
from Guzman to Davis, I credit the testimony of Simmons when
she stated Guzman’s name was placed in error as charge nurse

10 The Supreme Court’s decision in NLRB v. J. Weingarten, Inc., 420
U.S. 251 (1975), held that an employer violates Sec. 8(a) (1) of the Act
when it denies an employee’s request for union representation at an in-
vestigatory interview that he or she reasonably believes may result in his
or her discipline. See also Kohl’s Food Co., 249 NLRB 75 (1980); Len-
nox Industries, Inc., 244 NLRB 607 (1979); Baton Rouge Water Works
Co., 246 NLRB 995 (1979). In determining whether an employee’s be-
lief is reasonable, the Court set forth an objective standard, considering
all of the surrounding circumstances. Weingarten at 257. Once an
for June 25 by the nightshift coordinator and that everyone al-
ready knew that Guzman was not the charge nurse on that date.
This testimony was confirmed by nurse Kiffin, who testified that
she was aware that Guzman was taken out of the rotation months
ago (Tr. 146).
Even Guzman knew she was not supposed to be the charge
nurse on June 25. Guzman testified that nurse Davis informed
her at approximately 7:15−7:30 a.m. on June 25 that Simmons
had already asked Davis to be charge nurse for the day (Tr.
20−22). So, it cannot come as a shock to Guzman when Sim-
mons allegedly embarrassed Guzman in front of other employees
since Guzman already knew she was removed as the charge
nurse well before the 8 a.m. huddle. Additionally, Guzman knew
that she should not be a charge nurse because she was removed
over the February incident with patient-care technician Grant.
That matter was resolved when Respondent agreed to place Guz-
man in the charge nurse rotation if Guzman takes a class and a
3-day orientation with another nurse (Tr. 48−50). Guzman may
have been embarrassed and upset that Simmons announced that
Davis was the charge nurse, but there was nothing coercive or
restraining on employee rights when the announcement was
made or that it demonstrated any animus by Simmons towards
Guzman.
With regard to the incident with patient-care technician Grant
that morning, I also credit Simmons’ testimony that she did not
tell Guzman to use 8th grade level language when speaking to
Grant. Davis testified that there was nothing inappropriate for a
supervisor to discuss the manner of communication between em-
ployees (Tr. 122). Although Davis testified that she heard Sim-
mons making this comment, Davis initially testify that Simmons
told Grant
I did not hear the first part, but when I entered, I heard the part
where Mr.—Ms. Simmons was explaining to Ms. Guzman
how she should communicate with the PCT in simple, basic
terms without using medical terminology (Tr. 102).
Davis did not testify that the 8th level language was used until
I prompted her if there was anything else to add
JUDGE CHU: What else did you hear?
THE WITNESS: I just heard, as you said, she asked her
how she should speak to her. She said, “Use common
eighth-grade level.”
JUDGE CHU: I couldn't hear you.
THE WITNESS: She used and -- speak to her at the
eighth-grade level.
JUDGE CHU: But you didn't testify that earlier, you
just said simple, basic terms.
THE WITNESS: Yes (Tr. 103).
employee requests that a union representative be present during an in-
vestigatory interview, the employer may grant the request, discontinue
the interview or offer the employee the choice to either continue the in-
terview without a representative or not having the interview at all.
Weingarten at 258–259; YRC Inc., 360 NLRB 744, 745 (2014); Consol-
idated Freightways Corp., 264 NLRB 541, 542 (1982); General Motors
Co., 251 NLRB 850, 857 (1980), enfd. in relevant part 674 F.2d 576 (6th
Cir. 1982); USPS, 241 NLRB 141 (1979).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Given the seriousness of Guzman’s contention that she was
instructed to use 8th grade language with Grant, Davis did not
recall that comment until later in her testimony. In my opinion,
more likely than not, Simmons told Guzman to speak in a simple
language and use basic medical terminology, exactly in the man-
ner as in Davis’ initial testimony noted above and nothing
more.11
Turning to the alleged threat, it behooves me to question if the
threat of reprisal was made at all by Simmons. Allegedly, Sim-
mons told Guzman in front of nurses Davis, Kiffin, Asamaoa,
and perhaps, other medical staff that “. . . if we talk to each other
one-on-one, I won’t be able to do or report it or say anything. It
won’t be held against you. But if I have to, you need a delegate,
then I’m going to have to pull your file, and that could open a
whole can of worms” (Tr. 31). Nurses Davis and Kiffin alleg-
edly heard the comment made by Simmons. Nurse Asamaoa did
not testify.12
Simmons testified that Guzman did not need a delegate, but if
she wants one, Simmons suggested Davis attend as the charge
nurse along with a union delegate. This testimony by Simmons
is consistent with her email to Justine Huffaker, the director of
nursing, on June 25 (GC Exh. 5). In that email, Simmons stated
to Huffaker,
Today, I asked her if we can meet today to discuss and if the
charge nurse is available they can join. She gave me a sheet of
paper indicating her Weingarten rights to representation. I went
back to her and said that she does not need a delegate and that
the charge nurse Una can be in the room with us. She decided
that she should have a delegate. I then said that it again it's not
needed but if this is what you want to do I would like to meet
with your delegate sooner because of the nature of issue.
Obviously, the contemporaneous statement made by Simmons
on the day of the incident outweighs the memory of other wit-
nesses made several months later. More significantly, it be-
hooves me to question why no one spoke up when Simmons al-
legedly made this threat. Davis, without dispute, is a union del-
egate and has attended investigatory interviews in the past. Da-
vis, as a union official, is well aware of employees’ rights. Davis
never spoke up or commented when the alleged threat was made.
Kiffin, who was responsible for giving Guzman a copy of the
Weingarten rights, is also well aware of employees’ rights, but
did not speak up. Instead, she left the area without saying a
word.13 Perhaps, the nurses were afraid to confront Simmons
over her alleged threat, but no one testified to that. More signif-
icantly, while nurses Guzman, Davis and Kiffin were quick to
talk among themselves about the removal of Guzman as charge

11 Without dispute, this complaint does not involve a violation of the
Act when Guzman’s charge duties were reassigned to Davis or when
Simmons allegedly instructed Guzman to speak in an 8th grade level to
patient-care technician Grant. Even assuming that the events occurred
as described by Guzman and the other witnesses for the counsel for the
General Counsel, I find that mere indignities and embarrassment alleg-
edly suffered by Guzman is not a violation of the Act.
12 The counsel for the Respondent request that I draw an adverse in-
ference when the General Counsel failed to call Asamaoa as a witness
(R. Br. at fn. 6). Bystander employees are not presumed to be favorably
disposed toward any party and no adverse inference is drawn against a
nurse and their Weingarten rights, no testimony was proffered
that they spoke afterwards about the threat. In my opinion, the
nurses did not speak among themselves after the threat was al-
legedly made because no threat was uttered by Simmons.
In contrast, Simmons, as the nurse manager for 3 years and
engaged in previous investigatory interviews and discipline with
collective-bargaining employees, was well aware and knowl-
edgeable of employees’ Weingarten rights and the need to refrain
from uttering comments and threats that may interfere, restrain,
or coercive employees over the exercise of their Section 7 rights.
It is reasonable to believe that Simmons would not make a noto-
rious and open threat in front of the nurses and other medical
employees. I note that Nurse Davis never testified that Simmons
made any coercive statements to other employees that she had
represented at previous investigatory interviews conducted by
Simmons. Davis never testified that Guzman was threatened by
Simmons at the June 13 grievance meeting (Tr. 40−46).
As such, I find that Simmons never made a threat of unspeci-
fied reprisal to Guzman and other employees on June 25 and ac-
cordingly, I recommend that the complaint be dismissed in its
entirely.
Dated: Washington, D.C. May 30, 2019
party for not calling them. Torbitt & Castleman, Inc., 320 NLRB 907,
910 fn. 6 (1996), affd. on point 123 F.3d 899, 907 (6th Cir. 1997). I find
sanctioning the General Counsel as unnecessary.
13 Kiffin did write an email to Guzman on July 5, summarizing what
she heard on June 25, which was forwarded by Guzman to Fontes (R.
Exh. 1). However, no action was taken by the Union over this alleged
threat until the charge was filed on October 9. Although, I indicated at
the hearing that the charge was timely filed, it is significant to question
why the charge was not filed much earlier if indeed this was a severe
threat of reprisal made by Simmons to Guzman and to other union mem-
ber nurses.